CHILE Law and Practice Contributed by: Ignacio Errazquin, Adolfo Romero and Florencia Anguita, CMS Carey & Allende
completed. The disclosure must include the acquirer’s identity, purpose of acquisition, and future intentions regarding control or if the acquisition is solely a finan- cial investment. While Chilean law contains no “put-up-or-shut-up” rule, the CMF may treat the accumulation of shares with an evident control purpose as preparatory to a mandatory tender offer. In the energy context, if the target operates assets connected to the national grid or holds generation concessions, the National Elec- tricity Co-Ordinator ( Coordinador Eléctrico Nacion- al , or CEN) and the CNE may request notice of the change in control to ensure continuity of operations and compliance with sectoral obligations. 4.2 Mandatory Offer A mandatory tender offer ( oferta pública de adqui- sición de acciones , or OPA) must be launched when: • an acquirer obtains control of a listed company by means of the tender offer; or • as a consequence of any kind of acquisition of shares, a person (or group of persons acting jointly) reaches two-thirds or more of the voting shares ‒ in which case, they must launch a mandatory tender offer for the remaining shares. Control is presumed where more than 50% of voting shares are held, or where the acquirer is able to deter- mine the outcome of board elections or management decisions (Article 97 of Law 18,045 (the “Securities Market Law”)). The offer must be filed by means of a tender offer notice published in a national newspa- per and filed with the Financial Market Commission ( Comisión para el Mercado Financiero , or CMF) within 30 days of the publication of the notice. The offer must remain open for a minimum of 20 and a maximum of 30 business days. Control exercised through voting agreements or pacts is also covered by Article 99 of Law 18,045, which requires disclosure to the CMF and the stock exchange. Procedural rules governing the form, content, guar- antees, timing and publication of tender offers are set
out in CMF General Rule ( Norma de Carácter General , or NCG) No 104. 4.3 Transaction Structures The most common structure for acquiring a public company in Chile is an OPA governed by the Securi- ties Market Law. Friendly transactions often involve a pre-agreed share purchase agreement between the bidder and key shareholders, the completion of which is subject to the OPA’s outcome. Statutory mergers under Law No 18,046 (the “Cor- porations Law”) are legally available but rarely used for listed companies, owing to their procedural com- plexity. They require the approval of two-thirds of the voting shares, publication of the merger plan, and creditor-protection measures under Articles 94–100 of the Corporations Law. In the energy and infrastructure sectors, these hurdles are compounded by the need to update concessions and regulatory authorisations with the CNE, the CEN, and the SEC. These authorities generally prefer conti- nuity of the licence-holding entity, making corporate- level mergers less practical than share acquisitions through an OPA. 4.4 Consideration and Minimum Price Public company acquisitions are typically cash-based ‒ although mixed consideration is permitted. In statu- tory mergers, consideration may consist of cash, shares, or other assets, provided that the valuation methodology and exchange ratio are properly dis- closed to shareholders under the procedure set out in Articles 94–100 of the Corporations Law. For tender offers, Article 199 of the Securities Market Law identifies the circumstances in which a takeover must be carried out through an OPA. Once a bidder has taken control, Article 200 of the Securities Market Law establishes a price-protection rule, whereby the controlling shareholder may not acquire an additional 3% or more of the voting shares within 12 months unless it makes a new tender offer at a price per share not lower than the price paid in the original control acquisition. This rule safeguards equal treatment of minority investors.
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